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The Need to Prove Fault Fuels Bad Feeling Between Divorcing Couples

View profile for Andrew Robinson
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New research has found that the majority of English and Welsh divorces still rely on showing one party as ‘at fault’, and this regularly creates bad feeling and conflict between couples.

The study entitled ‘Finding Fault?’ aims to research how the current divorce law in England and Wales works in practice. Funded by the Nuffield Foundation in light of the recent Court of Appeal judgement in Owens v Owens, the study includes a national opinion survey on divorce law, focus groups and interviews with divorcees, family lawyers and judges, as well as analysis of court files and divorce cases.

The final report will be published in Autumn 2017 however some key interim findings have been released:

  • The majority of divorces are based on ‘fault’.
  • Divorce petitions are not necessarily accurate records of who or what caused the breakdown of the marriage. 43% of respondents said the ‘fact’ used was not closely related to the ‘real’ reason for the separation.
  • The court cannot test whether allegations are true or not and petitions are taken at face value. ‘Rebuttals’ written on the form by respondents are ignored unless the respondent files a formal ‘Answer’ to defend the petition.
  • Less than 1% of divorces are defended.
  • The threshold for behaviour petitions appears to be much lower than 30 years ago. Very few petitions appear to be rejected on substantive legal grounds, whether ‘true’ or not.
  • Fault can create or exacerbate conflict. This can affect negotiations about children and finances where the law expects parties to work together.
  • In reality, there is already divorce by consent or ‘on-demand’, but masked by an often painful and sometimes destructive legal ritual.
  • So far, there is no evidence from the study that the current law protects marriage.

Interestingly the research found that in practice, divorce petitions are merely a means to an end rather than an accurate recording of why a marriage has failed.

A majority in the national opinion survey thought that fault makes divorce more bitter and harder to focus on children’s needs. Quotes from participating divorcees appear to back this up:

“What my husband decided to write was that I was ‘emotionally abusive’. That was a hurtful thing to read and that will have an effect on our relationship which will not benefit the children.” [Respondent Wife]

“Having to come up with reasons where someone is already hurting – you’ve got to hurt them more to be able to fill the paperwork in – doesn’t make you feel great, it doesn’t make them feel great, and is already a very stressful time in your life.” [Petitioner husband]

In observations at court, researchers found scrutiny of each petition took on average five minutes, and most of this time was used to check technical details.

They also found it was common for respondents to state in their ‘Acknowledgment of Service’ that they did not accept the petitioner’s allegations. However this was routinely ignored, except in the rare defended case where the respondent had paid the £245 fee to file an ‘Answer’.

Of course one aspect the study hasn’t looked at is the impact of Family Mediation on divorcing couples. In my experience, clients utilising mediation are often able to reach an amicable conclusion without much of the conflict and bad feeling generated by court proceedings.

Family Mediation Service

Fishers Dewes Family Mediation service is led by Andrew Robinson, a Resolution trained family mediator and Resolution accredited specialist solicitor in the areas of financial provision on divorce and private children law.

Andrew is able to provide Mediation Information and Assessment Meetings (MIAM) as well as ongoing mediation sessions from either of our offices in Ashby de la Zouch, Leicestershire or Tamworth, Staffordshire.

You can download a copy of our mediation leaflet as well as our referral form and schedule of charges.  If you wish to make a referral for mediation sessions or to provide a MIAM, please complete a referral form and return by email to andrew.robinson@fishers-dewes.co.uk.

Additional Reading

Current divorce law effectively allows divorce ‘on demand’ but is masked by a painful legal ritual that does not protect marriage [Nuffield Foundation]

‘Finding Fault?’ Interim research findings [Finding Fault]

Tina Owens v Hugh John Owens [Courts and Tribunals Judiciary]

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